PARTICIPATION OF THE PROVINCES
Law and Government Division
OVER EXTERNAL RELATIONS
BETWEEN SIGNING AND IMPLEMENTATION
LIABILITY: FEDERAL AND PROVINCIAL INVOLVEMENT
IMPLEMENTATION AND THE
PARTICIPATION OF THE PROVINCES
The division of legislative
powers between the two levels of government (federal and provincial) in
the Canadian federation causes certain problems in the implementation
of international treaties.
A treaty is an agreement
between two or more countries. Like individuals who agree to be bound
by various types of contracts, countries make various types of commitments
when they sign a treaty.
In the case of a defence
cooperation agreement, the obligations of the countries are limited to
what is agreed upon in the treaty and have no direct effect on domestic
legislation applicable in each country. The effects are different, however,
in the case of a trade accord such as the North American Free Trade Agreement
(NAFTA). This agreement was not reached solely for the benefit of the
signatory states as entities of international law; it was also designed
to amend certain international trade practices and to facilitate trade
relations among nationals of the countries that signed the treaty.
Under this type of treaty,
Canada makes a commitment to reduce its customs tariffs and to eliminate
other barriers to foreign trade. In order to do so, Parliament must amend
its legislation or regulations in the area. The changes which Parliament
makes to its domestic legislation based on, or in order to comply with,
the treaty thus are the means of implementing the treaty.
Parliament cannot amend
provincial legislation or pass a new statute in an area of provincial
legislative jurisdiction. Thus, a treaty (or a specific section thereof)
whose subject falls within the legislative competence of the provinces
cannot be implemented unless the provincial legislatures intervene with
respect to the matters within their jurisdiction.
In order to grasp the complex
nature of the Canadian situation, we must first try to establish who has
authority over international relations within the Canadian federation
and comment on the distinction between the signing of a treaty and its
implementation. This will lead us more specifically to discuss the difficulties
involved in implementing treaties in Canada. Lastly, we will make a few
remarks on Canada's international liability.
OVER EXTERNAL RELATIONS
It is impossible to tell
from the division of legislative powers provided in the Constitution
Act, 1867 which level of government, federal or provincial, has authority
to sign a treaty with a foreign government. No provision is made in the
Canadian Constitution for a jurisdiction anything like external relations
or international relations. This is understandable, however, because when
the Constitution Act, 1867(1)
was passed by the British Parliament in London, Canada was still a colony
of the British Empire.
While the Constitution
Act, 1867 provided for the creation of a new country (the Dominion
of Canada), that country did not immediately acquire all the attributes
of sovereignty on the international scene. Its international "personality"
remained incomplete. The British Parliament reserved for the British Crown
the power to represent the Dominion of Canada internationally and to sign
treaties with foreign countries on its behalf. Under section 132
of the Constitution Act, 1867, however, the federal government
was given responsibility for implementing in Canada treaties entered into
by the British Crown, where these were applicable to this country.
The Canadian government
gradually intervened on its own authority in discussions concerning the
negotiation of treaties and international conventions.(2)
Over the years, Canada increasingly acquired independence in its external
affairs.(3) After the First
World War, the Canadian government acted on its own authority in international
affairs, and British authorities merely ratified the treaties submitted
to them. In 1931, the Statute of Westminster recognized that Canada
and a number of other Dominions of the British Empire were entirely independent(4)
and had the power to act on the international stage with all the attributes
of a sovereign state. Canada was then invested with full powers in external
affairs. By the same token, however, section 132 of the Constitution
Act, 1867 became obsolete.
Relations with foreign countries,
which have always been a Royal prerogative (that is of the British Crown),
are exercised in Canada by the representative of the Sovereign, that is
the Governor General in Council (the Cabinet).(5)
The popular belief is that
the head of state is the only person able to represent Canada internationally
and that he or she alone has the power to sign treaties and international
conventions on its behalf. The reality, however, is quite different. While
the Cabinet retains ultimate effective control over the ratification of
treaties, they may be negotiated and signed by any person authorized.
Apart from the Prime Minister, those persons are usually ministers, deputy
ministers, diplomatic representatives or negotiators of the Canadian government.
Once the Cabinet approves
an agreement reached between Canada and a foreign country, that agreement
becomes an international treaty, provided it is also ratified by the other
The treaty negotiated and
signed for and on behalf of Canada by a representative of the Canadian
government, and subsequently approved by the Governor General in Council,
will be binding on Canada. This approval usually takes the form of an
Order in Council. The Cabinet may also approve the text of an international
treaty which has not yet been signed and may delegate a representative
of the Canadian government to sign it on behalf of Canada. That mandate
should appear in the appropriate Order in Council.(6)
The ratification and signing
of an international treaty must not be confused with its entry into force,
which is determined by the treaty itself or by an agreement between the
parties. It is generally the date of the exchange or tabling of instruments
of ratification. Thus, if NAFTA receives all the necessary approvals for
its commencement, section 2203 provides that the agreement will go
into effect on 1 January 1994.
BETWEEN SIGNING AND IMPLEMENTATION
An international treaty
does not have to be approved by Parliament in order to go into effect.
Although the practice is that treaties are tabled in Parliament once ratified
by the Canadian government, their tabling does not make those treaties
applicable in domestic law. The reason is simple. Parliament (as well
as the legislature of each province) is the only state institution that
can adopt and amend statutes. Parliament (or the provincial legislature)
is sovereign in its areas of legislative jurisdiction, and the executive
branch may not intervene in those areas in any way.
Even if the treaty is in
effect, that is to say that it has been signed and ratified by all the
parties, that does not mean that it has any effect on domestic law in
Canada. In this case, it does not have to be ratified by Parliament. Not
all treaties have effect in domestic law. However, where a treaty directly
affects Canadian domestic law, it must be approved by Parliament in order
to have any such effect.
In addition to approving
the treaty, Parliament must very often amend its legislation according
to the terms of the treaty in question by so stating in an enabling statute.
One can immediately see
the limit of this approval, since Parliament, the legislative branch of
Canada's federal government, may amend only those legislative provisions
that are within its jurisdiction. If the treaty in question concerns a
domestic field within provincial jurisdiction, Parliament may not act.
That was the essence of the Privy Council judgment in the Labour Conventions
Since that judgment, it
has usually been recognized that treaties should be implemented within
Confederation by the level of government with legislative authority over
the subject of the treaty.
To be more specific, it
was found in Labour Conventions that Parliament may not legislate
in an area of provincial jurisdiction, even if its purpose in so doing
is to implement an international treaty.
The signing of NAFTA illustrates
even more acutely the problem of the division of legislative powers in
Canada. Even though the purpose of the agreement is to regulate foreign
trade with our southern neighbours, this regulation has a direct effect
on the law applicable in Canada.
In fact, when an international
treaty signed by the federal government affects areas of provincial legislative
jurisdiction, the provinces must intervene and amend their legislation
if necessary in order to give effect to that treaty. Some provisions of
NAFTA may be considered, at least in certain respects, as falling within
provincial legislative jurisdiction (Chapter 3: Textiles and Clothing;
Chap. 7: Agriculture; Chap. 12: Services).
LIABILITY: FEDERAL AND PROVINCIAL INVOLVEMENT
Signing an international
treaty is one thing, but its observance is another. Since the Canadian
government alone is the international representative of the Canadian federation,
it is the only entity responsible for compliance with international conventions
implemented in Canada. However, since it does not have full powers to
implement such treaties, one sees that there are serious weaknesses in
its ability to exercise this responsibility.
Where a treaty, or even
part of it, concerns areas of provincial legislative jurisdiction, a so-called
"federal clause" is usually introduced in order to limit Canada's
liability. The federal clause has the effect, to varying degrees depending
on its wording and the subject of the treaty in question, of informing
all the parties to the treaty, that the Canadian government may encounter
difficulties in implementation because it must first secure the cooperation
of the Canadian provinces.
By thus introducing a "federal
clause" in certain treaties that it has signed, the Canadian government
limits its liability, should the provinces or even one province
refuse to pass and amend legislation in accordance with the treaty's
The effect of such a "federal
clause" is, however, ambiguous. One can argue either that it obliges
the Canadian government to make its best effort to carry out the treaty,
or that it obliges it to succeed in this effort. There is an enormous
difference between the two. If the Canadian government had an obligation
to succeed but was not able to secure the cooperation of one province
in implementing the international treaty in domestic law, another party
to the treaty might invoke Canada's international liability. This would
not be the case if Canada had only an obligation to make its best effort.
To avoid international liability in such circumstances, the Canadian government
need only establish that, despite all its efforts or negotiations, it
had proved impossible to obtain the cooperation of at least one province.
of the General Agreement on Tariffs and Trade (GATT) is considered a typical
example of a best-effort obligation. That provision reads as follows:
XXIV(12) Each contracting
party shall take such reasonable measures as may be available to it
to ensure observance of the provisions of this Agreement by the regional
and local governments and authorities within its territory.
The text of Article 105
of NAFTA is somewhat different, however.
105. The Parties shall
ensure that all necessary measures are taken in order to give effect
to the provisions of this Agreement, including their observance, except
as otherwise provided in this Agreement by state and provincial governments.
Whereas the text of the
General Agreement speaks of taking "such reasonable measures as may
be available to it", NAFTA contains more imperative terms: "shall
ensure that all necessary measures are taken in order to give effect ...".
Some authors see the text
of NAFTA as imposing a performance obligation on the Canadian government.(8)
If this interpretation is correct, it means that unless the Canadian government
could implement each and every provision in NAFTA, it would be in default
and could be subject to an application for dispute settlement, and possibly
reprisals, by the United States and Mexico.
Since the Canadian government's
default would be partly related to the federal structure of our country
rather than to its refusal to act or to comply with NAFTA, it is surprising
that the treaty contains such strict terms.
The Canadian government
may prevent the question of its liability under NAFTA from being raised
if it can secure the cooperation of the provinces in implementing the
treaty. The principle of cooperative federalism would provide a more satisfactory
solution for all levels of government in Canada than would the federal
government's exclusive jurisdiction over international trade, which some
would like to see recognized with respect to the implementation of treaties.
Current practice is tending
in this direction. The federal government usually consults the provinces
before ratifying a treaty that may require their participation in implementation.
With good will on all sides, provincial cooperation will enable the Canadian
government to play an increasingly important international role, which
can only be to the benefit of every Canadian region.
The British North America Act, 1867, 30-31, Vict., chap. 3,
(U.K.), passed by the British Parliament, has borne the title Constitution
Act, 1867 since 1982.
For details on the development of Canada as an international entity, see
J.-C. Bonenfant, "Le développement du statut international du
Canada," in Paul Painchaud, Le Canada et le Québec sur la scène
internationale, Centre québécois de relations internationales, Quebec
City, 1977, p. 31-49.
The traditional use of the term "external affairs" in reference
to foreign relations continues in Canada. Out of respect for the British
Crown, which reserved the term "foreign affairs" for its own
use within the Empire, Canada still refuses to employ the term "foreign"
or its French translation (étranger/étrangère), hence the use of the terms
"external," "external affairs" and "external
relations." P.W. Hogg, Constitutional Law in Canada,
Carswell, Toronto, 1991, p. 290-291; J.-C. Bonenfant, "Le
développement du statut international du Canada," in Paul Painchaud,
Le Canada et le Québec sur la scène internationale, Centre québécois
de relations internationales, Quebec City, 1977, p. 43, note 25.
Except with respect to amendments to the Canadian Constitution, which
remained under the authority of the British Parliament until 1982.
The Statute of Westminster did not determine whether the federal
government alone had authority over external affairs or whether that authority
was shared with the provinces, along the lines of the division of legislative
powers provided in the Constitution or interpreted by the courts. In this
paper, we shall not discuss the theory that this prerogative is shared
between the Governor General and the Lieutenant-Governors of the provinces.
See Lorne Giroux, "La capacité internationale de provinces en droit
constitutionnel canadien," (1967-68) Les Cahiers de Droit 241.
According to that theory, the provinces have a partial international personality
related to their areas of legislative jurisdiction. According to the dominant
doctrine, however, the provinces do not have such powers internationally.
P.W. Hogg, Constitutional Law in Canada, Carswell, Toronto,
1992, p. 298.
On the Canadian practice in this area, see Jean-Yves Grenon, "De
la conclusion des traités et de leur mise en oeuvre au Canada," 15
Canadian Bar Review, Vol. 40, 1962.
A. G. Canada v. A. G. Ontario (1937) A.C. 326. In this case, the Canadian
government had approved three international labour conventions. Parliament
had passed legislation on the subject to implement them in Canada. The
statutes were challenged, inter alia, by the provinces, which saw
the legislation as an intrusion in their legislative jurisdiction. It
was decided that Parliament could not pass such legislation, even in order
to implement Canada's international obligations, because labour was an
exclusive jurisdiction of the provinces.
I. Bernier, "L'Accord de libre-échange Canada-États-Unis et la Constitution,"
in Marc Gold and David Leyton-Brown, Eds., Trade-Offs on Free Trade
- The Canada-U.S. Free Trade Agreement, Carswell, Toronto, 1988, p. 100.
H. Scott Fairley, "Jurisdictional Limits on National Purpose: Ottawa,
the Provinces and Free Trade with the United States," in Marc Gold
and David Leyton-Brown, Eds., Trade-Offs on Free Trade - The Canada-U.S.
Free Trade Agreement, Carswell, Toronto, 1988, p. 109.